SHEORAJDHARI SINGH Vs. SIR KAMESHWAR SINGH

JUDGEMENT

(1.) This second appeal which has been referred to a Division Bench by Agarwala, J. arises out or a suit in which the plaintiffs who hold a mokarrari tenure of 8 annas in village Inderpur Koohassa under the defendant have sued for a declaration that certificate case 1339 of 1936-37 instituted at the latter's instance against the plaintiffs cannot proceed because there was illegally included in the demand of Rs. 2812-8-0 a sum of Rs. 703-2-0 which was not recoverable. The certificate was for the rent of the year 1343 F. Section and this rent as found by the District Judge was payable in four equal kists in Assin, Pus, Ohait and Jeth respectively. On a previous occasion, that is to say, on 16 December 1935 the defendant (who was a landlord permitted by Government to enjoy the benefit of realisation of his rents through certificate procedure) had taken out a similar certificate (in case 1188 of 1935-36) in respect of all four kists of the rent of the year 1342. The requisition for that certificate was sent, the District Judge has found, after one kist amounting to Rs. 703-2-0 of the rent of 1343 had accrued due and the objection taken by the certificate-debtors (now the plaintiffs) was that on the principle of Order 2, Rule 2, Civil P.C., the landlord not having included this kist in the demand for which he made the previous requisition could not recover the amount by suit or by certificate procedure and the certificate ought therefore to be made in respect of approximate Rs. 2100 by excluding the amount of the Assin kist. The objection of the debtor was allowed by the certificate officer and a modified certificate was drawn up for about Rs. 2100; but the landlord appealed to the Collector who holding that Order 2, Rule 2 did not bar the recovery of the whole demand by certificate procedure made a certificate for the whole amount claimed. This order was passed on 8 March 1937. The plaintiffs moved the Commissioner in revision, but their application was dismissed on 11 May 1937. They also moved the Board in revision, but their application was rejected on 21st August 1937. They instituted the present suit on 10 November 1937, that is to say, within six months of the Commissioner's order but beyond six months from the order of the Collector. The District Judge has held that the suit is a suit of the nature contemplated by Section 43, Public Demands Recovery Act, and required by that section to be instituted within six months as being a suit to modify the certificate on a ground specified in Section 44(2)(i) that a portion of the alleged debt was not due. The District Judge further held that the suit was out of time because limitation should be calculated from 8 March 1937 the date of the Collector's order.

(2.) Mr. Mahabir Prasad has argued that the suit is one brought under the ordinary law and not governed by the period of limitation in Section 43; but it appears to us that the suit relates to a matter referred to in Section 46 which runs thus: "Except as otherwise expressly provided in this Act, every question arising between the certificate holder and the certificate debtor, or their representatives, relating to the making, execution, discharge or satisfaction of a certificate duly filed under this Act, or relating to the confirmation or setting aside by an order under this Act of a sale held in execution of such certificate, shall be determined, not by a suit, but by order of the certificate officer before whom such question arises, or of such other certificate officer as he may determine." There is a proviso-excepting cases of fraud, but no fraud is alleged here. It is dear that if the certificate was duly filed under the Act, this suit relates to a matter falling within Section 46. But Mr. Mahabir Prasad has argued that the certificate was not duly filed because it was not for the correct amount which should have been held to be recoverable. He has referred us to the decision in Harendra Kumar V/s. Secy. of State ( 28) 15 A.I.R. 1928 Cal. 808 where a certificate was held not to have been duly filed and the plaintiff to have a right of suit under the general law. But in the certificate proceedings in that case there were many irregularities and illegalities, statutory provisions had been contravened and it does not seem to me that the observations in that case have any application to the facts before us. There was no demand at all due from the certificate-debtors in that case, but here admittedly a substantial amount was due and the plaintiffs have not denied that the certificate was a valid certificate to the extent of Rs. 2100.

(3.) The argument that a certificate cannot be deemed to have been duly filed if a portion of the alleged debt was not due would seem entirely to stultify Section 44 (2)(i) of the Act which provides for the modification of a certificate duly filed on the ground that a portion of the alleged debt was not due.